ON ARCHITECTURE- Naked truth: Sparks fly at BZA tree hearing

It's just a small conference room in the basement of City Hall, but on October 26, it seemed more like a court room, as developer David Turner, along with his lawyer, architect, arborist, and construction manger, clashed with city officials over the loss of a tree– and the fate of the multi-million dollar Watson Manor project at 3 University Circle.

Turner and company were hoping to persuade the Board of Zoning Appeals to overturn the stop-work order that halted the project in August when Turner cut down a 150-year-old beech tree in violation of his special use permit.

City officials stood fast in their resolve to hold Turner accountable for his action. If there was any doubt about the ill will between the City and Turner over the loss of the tree, it was removed in the opening exchange of Turner's defense.

"Tonight, you're going to learn about the other side of the story," Turner's lawyer, Fred Payne, dramatically declaimed– only to be curtly advised to "move it along" by BZA chair Kevin O'Halloran. A former member of the Planning Commission that approved Turner's special use permit with the save-the-tree stipulation, O'Halloran made it clear that he needed no education about the issue– and that he was adamant that Payne stick to a 15-minute time limit.

Neighborhood Development chief Jim Tolbert told the board that he had reminded Turner "repeatedly" that he had to go before the Planning Commission again if he had a problem saving the tree. Tolbert added that he had "assurances" from Turner that he would comply.

"But that meeting never took place," said Tolbert, who ordered the stop-work order on the project less than a week after Turner felled the tree. "I didn't feel like they made a reasonable effort to save the tree," he said. "I felt like they had intended to cut it down all along."

Payne fired back."Not only was there a reasonable effort to save the tree, but an extraordinary effort," he claimed, although scant evidence of the "extraordinary effort" was presented.

In fact, when one BZA board member later asked Turner to list the things he had done to save the tree, the developer could cite only six of the 15 requirements set out in the preservation plan, the last of which called for the removal of the tree only if it died as a result of the construction.

Payne maintained that the "dying" tree had become a "hazard to life and property"– even asserting that it was "going to fall over and kill somebody." This was a claim, however, that even Turner's arborist had not made; he claimed only that he "had begun to worry" about the tree. Essentially, Payne tried to argue that the tree was as good as dead, and that cutting it down was the right thing to do, a contention that Tolbert found baffling.

"You can't murder the tree and call it the death of the tree," Tolbert later said. "Saving the tree was an important condition of the special use permit, and they violated it."

Payne tried another tack, arguing that Tolbert did not have the authority to stop the project because Turner was working within the parameters of the approved site plan, a contention that clearly irked assistant city attorney Lisa Kelley.

"The letter that Jim Tolbert sent pointed out it was a violation of the special use permit and the site plan," said Kelley. "I will not allow them to insist that there is a site plan issue. The tree was not in danger of falling when they decided to cut it down. They did this because they didn't want to deal with the bureaucracy."

As Kelley pointed out, if there had been a problem with the tree, Turner could have gone to the zoning administrator for a determination. "The point here," she said, "is that they didn't even try."

Perhaps the final blow to Turner's defense– which began to seem more like an effort to save face than a real attempt to overturn the stop-work order-- came unwittingly from his architect, John Matthews, who raised a few eyebrows when he said, "We treasured the tree as much as anybody. We were all sorry it had to go."

Turner was perhaps best served by his own testimony, in which he apologized for the "anger his decision had caused" and explained that the demands of the site plan– particularly the construction of an entrance road that would have cut deeper into the tree's root system– would have made it impossible to save the tree, a claim his construction manager corroborated. Turner also revealed that he was a board member of the Institute for Advanced Studies in Culture, which was funding the project, and claimed he had agreed to do the job "pro bono."

The developer insisted he had interpreted Tolbert's request to go before the Planning Commission as a "recommendation, not a requirement " and that city staff had "ignored" his requests to discuss the problem with the tree. O'Halloran blasted that claim, saying he had "counted four or five times that staff had told Mr. Turner to go to the Planning Commission."

A week after his last request, said Turner, he decided to cut the tree down to avoid the "catastrophe" of it falling down.

"I don't usually do things this way," said Turner of his decision to hire Payne, "but after city officials made comments to the media about the possibility of leveling criminal charges against me, I knew I needed a lawyer."

Turner also noted the presence of a Hook reporter, which he said he hoped would allow him to tell "his side of the story."

"I have never been a defiant developer," he continued, "trying to undermine the public trust."

However, his story appeared to be too little too late for the BZA. O'Halloran pointed out that the Planning Commission had been impressed enough with the Watson Manor project to grant Turner the special use permit even though it was in a residential area. If Turner had presented the extenuating circumstances to the Planning Commission before cutting the tree down, O'Halloran said, he might have been successful.

"Some on the Commission may have been sympathetic to the problem," he said, " but we never got the chance."

In the end, although the BZA expressed sympathy with Turner's site plan problems, they voted unanimously to uphold Tolbert's decision to halt the Watson Manor project. Now, unless Turner decides to appeal his case to Circuit Court, the issue goes before the Planning Commission in November.

"I was shocked by the excavation," said University Circle resident Karen Doougald. "The property has been denuded."PHOTO BY DAVE MCNAIR